ABATEMENT O22

Dismissal of suit due to non-substitution of legal representative after the death of the parties to the suit.

Burden of Proof for Substitution Lies on:-

  1. If plaintiff dies than on LR’s of plaintiff.
  2. If defendant dies than of plaintiff.

Rule 6:- No Abatement By Reason of Death.

Suit filed → Evidences are recorded → Party dies → Court can pronounce the judgment.

Rule 7:- Suit Not Abate by Marriage.

Because of marriage suit will not be abate. They are not liable for each other liability. But in some case if the husband is liable under law in that case husband can be liable for or against decree.

Rule 8:- No Abatement by Insolvency.

Insolvency is no ground for abatement.

  1. ‘A’ got insolvent.
  2. ‘C’ is the creditor.
  3. ‘B’, assignee has to do some task for the benefit of creditor, but he failed to do that task.

Note: – Suit will not be abate.

Insolvency of plaintiff is not the ground for abatement but if other condition not fulfilled by assignee etc. than court may dismiss the suit.

Rule 9:- Effect of abatement or dismissal.

M. Veerappa v/s Ebelyn Seqveira.

Facts: – 1. ‘A’ filed suit against ‘B’

            2. ‘A’ got decree for damage for 50,000/-.

            3. ‘B’ filed an appeal and during appeal ‘B’ dies.

            4. LR’s were not substituted, therefore appeal abate.

            5. As appeal abate, decree of trial court will become final.

The legal consequence of abatement is that subsequent suit on the same COA cannot be filed. However, if a suit on same COA has been filed against a party against whom the suit has been abated then that party in subsequent suit is free to take the defence upon the fact which could have been used by the party in earlier suit (abated suit) i.e. a defence upon those facts is not prohibited.

Mithai Lal Dal Sangar Singh & Oths. V/s Anna Bai Devaram Kini & Oths, 2003 SC

It was held that upon the expiry of 90 days after the death of the party the suit will automatically abate, if no substitution has been done in that period. There is no need of separate order for abatement. For 90 days the suit will remain in suspended animation i.e. no proceeding will be done unless the substitution has been made. If after the abatement, an application for substitution is filed, there is no need to make a separate prayer for setting aside the abatement rather such a prayer for setting aside will be deemed to implicit in the prayer for substitution.

The order of court will be based upon two proceeding;

  1. Whether the abatement be set aside?
  2. Whether the substitution shall be allowed?

Even if only one of the LR will substituted, the whole suit be revive. However, that LR will be responsible to take defense only with respect to or extent to his share.

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